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Legislative Assembly for the ACT: 1999 Week 3 Hansard (24 March) . . Page.. 780 ..

MR MOORE: It is the protection of the law. What we are doing here today is discussing whether we are going to change the law and suddenly create a liability for a person - and we are going to do it by retrospective legislation; that is how we are going to do it. It seems to me, Mr Speaker, that what is clear under the current legislation is that there is no-one who is a criminal, there is no-one who has that liability.

On 8 May, Mr Humphries signed that letter off to Mr Stanhope. It may well be, and Mr Stanhope raised this question, that had Mr Stanhope got on the phone with Mr Osborne and said, "Let's get together. This is a serious matter. We really have to act very quickly and do it", there would have been an entirely different issue. But the reality is, Mr Speaker, that the retrospectivity that we are dealing with here is an incredible and important precedent for this Assembly. Remember, the law operates on precedent and what we do here today could be yet another issue of precedent. This has never happened in the life of this Assembly. We have never used retrospective legislation to resurrect a liability of an individual. We ought not to do that.

If we have a problem with it, we can go back to the legislation and say, "To make sure that we never allow this situation to happen again, we can ensure", as I think Mr Humphries suggested when we were talking about inquiries, royal commissions or coronial inquests, "that from now on there should be no limitations" or that the limitation should be seven years or 10 years or something like that. It is perfectly reasonable for us to say, "There is a problem with our legislation and, as of today, we are going to change that and everybody knows what is going to happen in future".

But to resurrect a liability that a person does not have today is unconscionable. It is in direct contradiction of the notion of civil liberties. You cannot reconcile the notion of civil liberties with a notion of resurrecting liability. If we are going to say, "No, we are not interested in civil liberties; we are just going to do it", I must say that I would respect that view more than I would with somebody who tries to argue that there is some civil liberty issue involved here. If that is your attitude, so be it. But I would argue also that it is the attitude of the tyrant, as identified by William Pitt. Mr Speaker, it seems to me that the warning that William Pitt gave us in 1783 is a warning that we should heed very carefully:

Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.


(4.26): I have listened carefully to this debate and will be supporting this legislation of Mr Berry's. I have heard Mr Moore and Mr Humphries argue passionately about their understanding of retrospectivity. It is clear from the debate that there are two issues of retrospectivity. There is the issue where retrospective legislation is going to change the nature of a crime. Everyone rejects that as a notion. Then we have what Mr Humphries and Mr Moore are calling the resurrecting of liability in that there is a degree of retrospectivity in that. Obviously, there is, but it is an issue that we have to consider in the context of the whole incident and the situation in the ACT. We hear from Mr Humphries and Mr Moore that there is this principle of precedent and we have to be aware of that. For me, after listening to this debate, this is not a bad precedent at all.

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